AFR
(SEE RULE 102(1))
ARMED FORCES TRIBUNAL ,KOLKATA BENCH
O. A. NO.111/2013
THIS 22ND DAY OF JUNE, 2015
CORAM
HON’BLE JUSTICE DEVI PRASAD SINGH, MEMBER (JUDICIAL)
HON’BLE LT GEN GAUTAM MOORTHY, MEMBER (ADMINISTRATIVE)
APPLICANT(S)
Ex-NK Netai Sikder (Army No.4564538K) son of
Paresh Chandra Sikder, Village –Bhutanir Ghat,
P. O. Bhutanir Ghat, P. S.-Falakata, DistrictJalpaiguri, West Bengal, Pin-735 211.
-versusRESPONDENT(S)
1.
The Union of India, Service through the
Secretary, Ministry
of Defence, Government of
India, South Block, New Delhi, Pin -110 011.
2.
The Chief of Army Staff, Army Head Quarter,
South Block, Government of India, New Delhi, Pin
110.011.
3. The Addl. Dte Gen personnel Service Adjutant
General’s Branch, IHQ of MOD (Army), “A” wing,
Room No.435, 4th floor, Sena Bhawan, DHQ, P. O.
New Delhi, Pin – 110 011.
4.
The DIR PS-4(d), Adjutant General Branch,
Integrated H.Q. of MOD (Army), DHQ, P.O. New
Delhi, Pin-110011.
5.
The Officer-in-Charge, Records, The Makar
Regiment, Pin – 9000127, C/O 56APO.
For the petitioner(s)
: Mr. Subhas Chandra Basu, Advocate
For the respondent(s)
: Mr. S. K. Bhattacharyya, Advocate
2
ORDER
PER HON’BLE JUSTICE DEVI PRASAD SINGH, MEMBER (JUDICIAL)
1.
The instant application under Section 14 of the Armed Forces Tribunal Act,
2007 ( in short ‘Act’) has been preferred for grant of disability pension. The
applicant was born on 15.07.1975 and joined the Indian Army as an Infantry
Soldier on 28.04.1994 and was discharged from Army in pursuance to the opinion
of the Release Medical Board (RMB) on 30.04.2011.
2.
It is admitted fact on record that on account of acute renal failure the
applicant was admitted in Military Hospital, Ahmedabad on 04.11.2011. After
diagnosis it was found by the Doctors that he was suffering from a disease namely,
Hydronephrosis. According to Doctors of the Military Hospital, the applicant
suffered the disease in consequence of congenital pelvicuretric junction obstruction
with non-functional kidney (right).
3.
On 12.12.2001 the applicant was operated upon for removal of one of the
kidneys. After completion of required tenure of service in the Indian Army the
matter was placed before the RMB and in consequence to its report, the applicant
was discharged from service on 30.04.2011.
4.
In terms of the opinion of the RMB, certification for commutation of
pension consented by the applicant on 07.09.2010 was issued and required amount
was paid to the applicant after taking into account the average duration of life for
commutation value of pension.
5.
Ld. counsel for the applicant submits that since the applicant suffered with
the aggravated disease of Hydronephrosis because of Army Service, he is entitled
for disability pension in pursuance of provisions contained in Army Rules. It is
further submitted that in case the applicant would not have been an Army man, the
problem being mild could not have aggravated because of hectic discharge of duty.
Non-payment of disability pension alleged is to be in violation of the statutory
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rights conferred by Army Act and Rules framed therein as well as instructions
issued from time to time. According to submission of Mr. Subhas Chandra Basu,
ld. adv. for the applicant, the Tribunal may direct for payment of disability pension.
6.
On the other hand, Mr. Sandip Kumar Bhattacharyya, ld. adv. for the
respondents submits that Hydronephrosis is a congenital renal disease and is
defined as “ a condition in which the pelvis and calyces of the kidney are distended
by non-infected urine due to ureteral or urethral obstruction. While relying upon the
book namely, ‘Price Textbook of the Practice of Medicine’, 10th Edn., 1966,
Oxford University Press, ld. counsel for the respondents further submits that
treatment of Hydronephrosis when it is mild or moderate in degree, the cause may
be remediable, for example, by division of an aberrant renal artery, removal of a
uretic calculus, re-implantation of the ureter, relief of prostatic enlargement or of
bladder neck stenosis. In advance cases, nephrectomy is necessary. Nephrectomy
means- extirpation of a kidney. Extirpation means – total eradiction; removal of an
entire pathological structure, organ or part (Butterworths Medical Dictionary, 2nd
Edn.).
7.
Vehimently opposing the relief claimed by the applicant attention has been
invited by Mr. Bhattacharyya, ld. adv. for the respondents to Annexure III of
Appendix II of the Pension Regulations of the Army which contains classification
of diseases vis-à-vis to its attributable to Army. It has been submitted that
Hydronephrosis being a congenital disease has not been mentioned therein, hence,
also, disability pension may not be given. Annexure III to Appendix II in its totality
is reproduced as under :-
“ ANNEXURE III TO APPENDIX II
Classification of Diseases
A.
Diseases Affected by Climatic Conditions.
1. Pulmonary Tuberculosis.
2. Pulmonary Oedema.
4
3. Pulmonary Tuberculosis with pleural effusion.
4. Tuberculosis-Non-Pulmonary.
5. Bronchitis.
6. Pleaurisy empyema, lung bascess, and Bronchiectasis.
7. Lobar pneumonia.
8. Nephritis (acute and chronic)
9. Otitis Media.
10. Rheumatism (acute and chronic)
11. Arthritis.
12. Mylegia.
13. Lumbago.
14. Local effects of severe cold climate-i.e. frost bite, tench foot and
chilblains.
15. Effects of hot climate-i.e. heat stroke and heat exhaustion.
B.
Diseases Affected by Stress and Strain.
1.
2.
3.
4.
5.
6.
7.
8.
9.
Psychosis and Psychoneurosis.
Hypertension (BP).
Pulmonary Tuberculosis.
Pulmonary Tuberculosis with pleural effusion.
Tuberculosis (Non-pulmonary).
Mitral Stenosis.
Pericarditis and adherent pericardium.
endocarditis.
Sub-acute bacterial
endo-carditis, including
endocarditis.
10. Myocarditis (acute and chronic).
11. Valvular disease.
12. Myocardial infarctionm, and other forms of IHD.
13. Cerebral haemorrhage an dcerehral infarction.
14. Peptic ulcer.
C.
infective
Diseases Affected by Dietary Compulsions.
1. Infective hepatitis (Jaundice)
2. Diseases of stomach and duodenum.
3. Worm infestation and particulary guinea wonn and round
worm infections.
4. Gastritis.
5. Food poisoning, especially due to tinned food.
6. Gastric ulcer.
7. Duodenal ulcer.
8. Nutritional Disorders.
C.
Diseases Affected by Training, Marching Prolonged
Standing etc.
1. Tetanus, erysipelas, septicaemia and pyaemia etc. resulting from
injuries.
2. Ankylosis and acquired defonnities resulting from injuries.
3. Post traumatic epilepsy and other mental changed resulting from
head injuries.
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4. Internal derangement of knee joint.
5. Deformities of feet.
6. Osteoertbeitis of spine and lower limb joints.
7. Burns sustained through petrol, fire, kerosene oil etc. leading
to scars and various deformities and disabilities.
8. Hernia.
9. Varicose veins.
E.
Environmental Diseases
1. Diseases contracted in the course of official duty of
attending to a Venereal or septicaemic patient or while
conducting a postmortem examination.
2.‘Diseases contracted on account of handling infectious
material, poisonous chemicals and radioactive substance.
F.
Diseases Affected by Altitude
1. High altitude pulmonary oedema and pulmonary
hypertension.
2. Acute mounation sickness.
3. Psychosis, Psychoneurosis, suicide.
4. Thrombosis.
G.
Disease Affected by Service in Submarines and in
Diving.
1. Acoustic trauma resulting from continuous noise and
vibrations.
2. Effects of exposure to high levels or toxic gases.
3. Droplet infectious.
4. Neurosis and psychosomatic disorders.
5. Effects of barotraumas.
6. Decompressio sickness.
7. Dysbaric osteo-necrosis.
H.
Diseases Affected by Service in Flying Duties.
1.
2.
3.
4.
5.
I.
Otitic barotraumas.
Altitude decompression sickness.
Hypoxia.
Explosive decompression.
Long during G.
Diseases not Normally Affected by Service
1. Malignant diseases (Cancer and Carcinoma).
2. Sarcoma (except in cases of Sarcoma of bone with a
history of injury due to service on the site of development
of the growth).
3. Epithelioma.
4. Rodent ulcer.
5. Lymphosarcoma.
6. Lymphadenoma, except of viral aeticlogy.
7. Leukaemia (except radiation effect).
8. Pernicious anaemia (Addision’s disease).
9. Osteitis deformans (Paget’s disease).
10. Gout.
11. Acromegaly.
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12. Cirrhosis of the liver if alchoholic.
EYES
13. Errors of refraction.
14. Hypennetropia.
15. Myopia.
16. Astiomatism.
17. Preshyopia.
18. Glaucoma –acute or chronic, unless there is a history
of injury due to service or of disease of the eye one to
service.
Note : There is no such disease of Constitutional Nature as is being
mentioned by AMC Officers in the Medical Board proceedings in
this list. If that be the case, an individual cannot be recruited in the
Service.
8.
Reliance has been placed by the ld. counsel for the applicant to the two
Apex Court Judgments - reported in (1) 2013 Vol.7 SCC Page 316 - Dharamvir
Singh Vs. Union of India and (2) 2013 Vol.8 SCC 85 - Veer Pal Singh Vs.
Secretary, Ministry of Defence. Case set up by the applicant has been rebutted
by Mr. Bhattacharyya, ld. counsel for the respondents stating that they are not
applicable under the facts and circumstances of the present case since the
disease of Hydronephrosis has not been included in Annexure III to Appendix
II (supra). He relied upon an earlier case of Hon’ble Supreme Court reported in
2009 Vol.9 SCC 140 Secretary, Ministry of Defence and Another Vs. A. V.
Damodaran.
Disease
9.
There appears to be no dispute that the applicant suffered from
Hydronephrosis. Treatment of Hydronephrosis depends upon the magnitude of
disease. Reliance place by the respondents over the Price Text Book of the
Practice of Medicine, 10th Edn., 1966, Oxford University Press provides
treatment of Hydronephrosis is reproduced as under :“When the Hydronephrosis is mild or moderate in degree, the cause
may be remediable, for example, by division of an aberrant renal artery,
removal of a uretic calculus, re-implantation of the ureter, relief of prostatic
enlargement or of bladder neck stenosis. In advance cases, nephrectomy is
necessary.”
7
From the aforesaid provisions contained in the Dictionary with regard to
treatment of Hydronephrosis there appears to be no room of doubt that it can be
mild or moderate or serious. In the event of mild or moderate Hydronephrosis,
by treatment it may be cured but in the event of advance stage the patient has to
undergo Nephrectomy.
10. According to Medical Board opinion the disease suffered by the applicant
is congenital renal disease. In case the applicant would have suffered mildly or
moderately he could have cured without Nephrectomy. Nothing has been
brought on record by the respondents and the attention of the Tribunal has also
not been invited that at the entry time in the Army i.e. on 28.04.1994 the
applicant was suffering from mild or moderate disease or it was in advance
stage. There may be situation where the petitioner being suffered with mild
disease may enter into the advance stage because of rigorous training or service
condition of the Army. In such a situation it may not be ruled out that the stage
of Nephrectomy has arrived because of rigorous Army service. Hence, it may
be attributed to the Army service. In case the disease would have been in
advance stage during course of selection this could have been detected and find
out by the Medical Board at entry level. Absence of any report with regard to
the applicant’s adverse health condition that too for further period of almost six
or seven years while serving in the Army may be because of the fact that the
applicant was not suffering from advance Hydronephrosis and his condition
aggravated during the course
of employment, hence he undergone
Nephrectomy on 12.12.2001. Even after 2001 he served the Army for about ten
years and was discharged from service on 30.04.2011 in pursuance to the report
of RMB.
11.
In the absence of any report with regard to the applicant’s suffering with
advance stage or moderate stage of Hydronephrosis at the entry level inference
may be drawn that the applicant was fit to join the Army on 20.04.1994 as a
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soldier and disability pension may not be denied only on the ground that his
disease is congenital. A disease which is mild not affecting regular human life
though congenital may not be treated as a ground to declare unfit a person,
denying disability pension.
12.
Thus the treatment of Hydronephrosis provided in the book (supra)
deals with different stages and situation and in case it was mild in the beginning
(curable) and at later stage it aggravated that too after joining the Army, the
situation may be attributed to Army service and to no other.
Rules :13.
Section 4 of Army Regulation contains provision for payment of
disability pension. Regulations 172, 173, 173A, 173B & 174 deal with the
situations where disability pension may be granted. For convenience, all these
provisions are reproduced as under :SECTION IV-DISABILITY PENSIONARY AWARDS
Extent of Application
172. (a) The regulations in this section shall apply to
(i) the individuals referred to in Regulation 112;
(ii) reservists when called up for service or for training.
(b) Obsolete
Primary conditions for the grant of disability Pension
*173. Unless otherwise specifically provided a disability pension consisting of
service element and disability element may be granted to an individual who is
invalided out of service on account of a disability which is attributable to or
aggravated -by military service in non-battle casualty and is assessed at 20 per cent
or over.
The question whether a disability is attributable to or aggravated by military
service shall be determined under the rule in Appendix II.
GOVERNMENT OF INDIA ORDER
GOIO No.1
xxxxxx
4.1
For determining the pensionary benefits for death of disability under
different circumstances due to attributable/aggravated causes, the cases will
be broadly categorized as follows:
Category A : Death or disability due to natural causes neither attributable to nor
aggravated by military service as determined by the competent medical authorities.
Examples would be ailments of nature of constitutional diseases as assessed by
medical authorities, chronic ailments like heart and renal diseases, prolonged
illness, accidents while not on duty.
9
Category B : Death or disability due to causes which are accepted as attributable
to or aggravated by military service as determined by the competent medical
authorities. diseases contracted because of continued exposure to a hostile work
environment, subject to extreme weather conditions or occupational hazards
resulting in death or disability would be examples.
Category C : Death or disability due to accidents in the performance of duties
such as :
(i)
Accidents while traveling on duty in
Government Vehicles or public/private
transport.
(ii)
Accidents during air journeys.
(iii)
Mishaps at sea while on duty.
(iv)
Electrocution while on duty, etc.
(v)
Accidents during participation in
organized
sports
events/adventure
activities/expeditions/training.
Category D : Death or disability due to acts of violence/attack by terrorists, anti
social elements, etc. whether on duty other than operational duty or even when not
on duty. Bomb blasts in public places or transport, indiscriminate shooting
incidents in public, etc. would be covered under this category, besides
death/disability occurring while employed in the aid of civil power in dealing with
natural calamities.
Death or disability arising as a result of :
(i)
Unintentional killing by own troops during the course of
duty in an operational area.
(ii)
Electrocution/attacks by wild animals and snake
bite/drowning during course of action in counter
insurgency/war.
(iii)
Accidental death/injury sustained due to natural calamities
such as flood, avalanches, landslides, cyclone, fire and
lightening or drowning in river while performing operational
duties/movement in action against enemy forces and armed
hostilities in operational area to include deployment on
international border or line of control.
Category E : Death or disability arising as a result of :
(a) enemy action in international war.
(b) action during deployment with a peace keeping mission abroad.
(c) border skirmishes.
(d) during laying or clearance of mines including enemy mines as also
minesweeping operation.
(e) on account of accidental explosions of mines while laying operationally
oriented mine-field or lifting or negotiating minefield laid by enemy or
own forces in operational areas near international borders of the line of
control.
(f) War like situations, including cases which are attributable to/aggravated
by :
(i)
extremist acts, exploding mines, etc. while on way to on way
to an operation area.
(ii)
battle inoculation training exercises or demonstration with
live ammunition:
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(a) flying operation involved in rehearsing of war plans
and implementations of OP instructions inclusive of
international exercises.
(b) All Combat and Tactical Sorties in preparation of war.
(c) Valley flying and missions involving operating at Ultra
Low Levels.
(d) All operational missions undertaken during peace like
Special operations, Live ORP, Recce, Elint, Survey and
induction trials of new weapons.
(e) Mission undertaken in support of troops and security
forces deployed in forward areas.
(f) Flying missions involving landings on the ALGs.
(iii)
kidnapping by extremists while on operational duty.
(g) An act of violence/attack by extremists, anti-social elements etc.
(h) Action against extremists, antisocial elements, etc. Death/disability
while employed in the aid of civil power in quelling agitation, riots or
revolt by demonstrators will be covered under this category.
(i) Death or disability arising as a result of poisoning of water by enemy
agents while deployed in operational area in active hostilities.
4.2
Cases covered under category ‘A’ would be dealt with in accordance with
the provisions contained in the Ministry of Defence letter
No.1(6)/98/D(Pen/Services) dated 3.2.98 and cases under category ‘B’ to
‘E’ will be dealt with under the provisions of this letter.
Notes :
(i)
(ii)
(iii)
(iv)
The illustrations given in each category are not exhaustive.
Cases not covered under these categories will be dealt with
as per Entitlement Rules to casually pensionary awards in
vogue.
The question whether a death/disability is attributable to or
aggravated by military service will be determined as per
provisions of the Pension Regulations for the Armed Forces
and the Entitlement Rules in vogue as amended from time to
time.
In case of death while in service which is not accepted as
attributable to or aggravated by Military Service or death
after retirement/discharge/invalidment, Ordinary Family
Pension shall be admissible as specified in Min of Def letter
No.1(6)/98/D(Pen/Ser) dated 03 Feb 98 as modified vide
Ministry of Defence letter No.1(1)99/D(Pen/Ser) dated
7.6.99.
Where an Armed Forces personnel is invalided out of service
due to non-attributable/non-aggravated causes, Invalid
pension/gratuity shall be paid in terms of Para 9 of Ministry
of Defence letter No.1(6)/98/D(Pen/Ser) dated 03 Feb 98 as
amended/modified vide Ministry of Defence letter No.
1(1)99/D(Pen/Ser) dated 07.06.99.
[Authority : GoI, MoD No.1(2)/97/1/D(Pen-C) dated 31.01.2001 as
amended vide No.1(II)/2006 (Pen-C) PC dated 08.09.2009 and
05/08.03.2010 and No.2(1)/2011-D(Pen/Policy) dated 03.02.2011]
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Individuals discharged on account of their being permanently in low medical
category
173-A. Individuals who are placed in a lower medical category (other than ‘E’)
permanently and who are discharged because no alternative employment in their
own trade/category suitable to their low medical category could be provided or who
are unwilling to accept the alternative employment or who having retained in
alternative appointment are discharged before completion of their engagement,
shall be deemed to have been invalided from service for the purpose of the
entitlement rules laid down in Appendix II to these Regulations.
Note. The above provision shall also apply to individuals who are placed in a low
medical category while on extended service and are discharged on that
account before the completion of the period of their extension.
Reservists discharged on account of being placed n a low medical category
173-B. A reservist who is placed permanently in a lower medical category (other
than ‘E’) and is discharged from the reserve on that account shall be deemed to
have been invalided out of service for the purpose of the entitlement rules laid
down in Appendix II to these Regulations.
Service rendered in aid of the civil power
174. Service rendered in aid of the civil power shall be treated as military service
for the purpose of disability pensionary awards.
14.
Apart from the above enabling position for payment of disability pension
Regulation 175 provides that where disability of an individual is wholly or partly
due to serious negligence or misconduct, disability pension may be reduced at the
discretion of the competent authority. For convenience Regulation 175 is
reproduced as under :Serious negligence or misconduct
175. If the disability of an individual is wholly or partly due to his serious
negligence or misconduct, the amount of disability pension otherwise admissible
may be reduced at the discretion of the competent authority.
15.
Regulation 176 provides that where a person is paid compensation for
disability from public exchequer, the amount payable in the form of disability
pension may be reduced by equal amount to the compensation with the condition
that in no case the residual pension shall be less than the service element.
Regulation 177 further provides that where an individual suffering from
disability accepted as attributable to or aggravated by the military service refused to
undergo an operation or other medical treatment which according to the Medical
Board is necessary to cure the disability or reduce the degree of disablement shall
12
not be treated as those of aggravation or retardation of cure. For convenience,
Regulation 177 is reproduced as under :Refusal to undergo medical treatment
177. Cases where an individual suffering from a disability accepted as attributable
to or aggravated by military service refuses to undergo an operation, or other
medical treatment which in the opinion of the service medical authority, would cure
the disability or reduce the degree of disablement, shall not be treated as those of
“aggravation” or “retardation of cure” under Regn. 118 but shall be dealt with as
follows: (a) If the refusal to undergo treatment or an operation is reasonable, the full
disability pension normally admissible under the regulations shall be granted.
(b) If the refusal to undergo treatment or an operation is unreasonable, pensionary
award be regulated as under: (i) In case where the Pension sanctioning authority in consultation with the
Medical Advisor (Pensions) where necessary, decides that an operation or
medical treatment will cure the disability, the disability element shall be
withheld but the service element as per regulation 186 shall be granted.
(ii) In cases where the pension sanctioning authority in consultation with the
Medical Advisor (Pensions) where necessary decides that an operation or
medical treatment will reduce the disability to a lower percentage, the
disability element of pension shall be restricted to that element which is
appropriate to the lower percentage of disablement. If that lower percentage
is less than 20 per cent, then only the normal service -element admissible as
per regulations 186, shall be granted.
(iii) The question whether an individual's refusal to undergo medical
treatment or an operation for his-'disability is reasonable or unreasonable
shall be decided in accordance with the criteria published in Appendix V to
these Regulations.
16.
Apart from the above, Regulation 178 deals with the situation where a
person retired/discharged from service and claimed disability pension within a
period of 10 years from the date of retirement. Regulation 179 deals with the
situation with regard to disability at the time of retirement/discharge. For
convenience, Regulations 178 and 179 are reproduced as under :Manifestation of a disability after an individual is retired/discharged from
service
178. An individual who is retired/discharged from Service, otherwise than at his
own request, with a pension or gratuity, but who, within a period of ten years from
the date of retirement/discharge, is found to be suffering from a disease which is
accepted as attributable to his military service may, at the discretion of the
competent authority, be granted, in addition to his pension/gratuity, a disability
element at the rate appropriate to the accepted degree of disablement and the rank
last held, with effect from such date as may be decided upon in the circumstances
of the case.
Note: The individual claiming the benefit under the provision of Regulation 178
above will send at, application the CCDA (P) through the Record office concerned
requesting to be brought before a medical board. On receipt of the application and
the relevant documents, CCDA (P) will decide, where necessary, in consultation
13
with the Medical Adviser (Pensions) attached to his office, whether a prima-facie
justification for bringing the claimant before a medical board exists or not. If it is
decided to bring the individual before a medical board the CCDA (P) will request
the record officer concerned to arrange for a medical board in the normal manner,
and forward the proceedings of the medical board to the CCDA (P) for further
necessary action.
Disability at the time of retirement/discharge
179. An individual retired/discharged on completion of tenure or on completion of
service limits or on completion of terms of engagement or on attaining the age of
50 years (irrespective of their period of engagement), if found suffering from a
disability attributable to or aggravated by military service and recorded by Service
Medical Authorities, shall be deemed to have been invalided out of service and
shall be granted disability pension from the date of retirement, if the accepted
degree of disability is 20 percent or more, and service element if the degree of
disability is less than 20 per cent. The service pension/service gratuity, if already
sanctioned and paid, shall be adjusted against the disability pension/service
element, as the case may be.
(2) The disability element referred to in clause (1) above shall be assessed on
the accepted degree of disablement at the time of retirement/discharge on the basis
of the rank held on the date on which the would/injury was sustained or in the case
of disease on the date of first removal from duty on account of that disease.
Note : In the case of an individual discharged on fulfilling the terms of his
retirement, his unwillingness to continue in service beyond the period of his
engagement should not affect his title to the disability element under the provision
of the above regulation.
17.
From the aforesaid provisions of the Army Regulation disability suffered
by an Army personnel on the date of retirement or within 10 years from the date of
retirement shall create a cause of action to claim disability pension and in case it is
attributable to Army service then the person shall be entitled for disability pension.
Under Regulation 178A even a person having disability less than 20% may claim
disability pension. In case the condition is aggravated within a period of 10 years
from the date of discharge then he shall be brought before the Medical Board.
18.
AFT, Kolkata Bench while dealing with a case of disability vide order
dated 19.08.2013 in T. A. No.74/2010 relied upon clause (c) of Para.423 of the
Regulation framed under the Medical Services of Armed Forces Act, 2010
(Revised). For convenience, it is reproduced hereunder :ATTRIBUTABILITY TO SERVICE
“423 (a) *******************
(b) *********************
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(c)
The cause of disability or death resulting from a disease as
attributable to service when it is established that the disease arose during
service on the conditions and circumstances of the disease, cases in which it
is established that the service conditions did not determine or contribute to
the onset of the disease but influenced the subsequent course of the disease,
will be regarded as aggravated by the service. A disease which has led to
an individual’s discharge or death will ordinarily be deemed to have
arisen in service if no note of it was made at the time of the individual’s
acceptance of service in the Armed Forces. However, if medical
opinion, holds for reasons to be stated that the disease could not have
been detected on medical examination prior to acceptance for service,
the disease will not be deemed to have arisen during service.”.
19.
A combined reading of the aforesaid provisions of Regulations dealing with
entitlement of disability pension shows that not only during the course of
employment but even after discharge or superannuation an Armed Forces personnel
may claim disability pension subject to rider of 10 years from the date of discharge.
A combined reading of columns A B C D E of Regulation 173 shows that disability
pension may be granted to any individual where disability is attributable to or
aggravated by military service is assessed at 20% or above. Different conditions
show that there are factors and situations which may be held responsible to
establish that disability is attributable to or aggravated by military service, depend
upon the facts of each case.
20.
Under the aforesaid conditions if petitioner’s case in hand is looked into
then even if it is congenital disease but not fatal for service or routine life and
enabled the petitioner to discharge duty for six or more years then fairly it may not
be ruled out that it could have been aggravated by military service under different
situation (supra) resulting in Nephrectomy and even after Nephrectomy he
15
continued to serve to complete his service. Hence it seems to be incorrect to say
that the applicant’s disease was not aggravated on account of military service.
21.
Non-fatal disease during childhood in case after joining the Armed Forces
that too after sufficiently long period aggravated then safely it may held that
aggravated disease is attributable to military service in non-battle situation. Rules
having statutory forces linked with the right to quality of life and right to dignity in
life should be interpreted in a manner which may fulfill its object. It is settled law
that beneficial legislation should be interpreted in the manner which may extend
benefit and meet its object. It must be given liberal construction.
Classification of disease :22.
It is vehemently argued that since the disease of Hydronephrosis has not
been mentioned in the Annexure III to Appendix II of the Rules (supra) disability
pension may not be granted. We are living in an era where right to life, right to
dignity of life and right to quality of life etc. has been secured by Article 21 of the
Constitution of India vide, Kharak Singh Vs. State of U.P., AIR 1963 SC 1295;
State of Maharashtra Vs. Chandrabhan Tale, AIR 1983 SC 803; Bandhua
Mukti Morcha Vs. U.O.I., AIR 1984 SC 802; Maneka Gandhi Vs. U.O.I. AIR
1978 SC 597; Board of Trustees of the Port of Bombay Vs Dilip Kumar
Raghavendranath Nadkarni, AIR 1983 SC 109. It is further well settled
proposition of law that right to life means human living and not animal living vide,
Air India Vs. Nergesh Meerza (1981) 4 SCC 335 and Kapila Hingorani Vs.
State of Bihar (2005) 2 SCC 262.
23.
In view of the above constitutional protection, in case disability is
attributable to the Army service and the disease has been aggravated because of
service condition of the Army then even if the names of such disease does not find
place in Annexure III to Appendix II (supra), the Army personnel shall be entitled
16
for disability pension subject to condition that his disease has been aggravated
because of Army service or he suffered from the disease because of Army service.
24.
Fundamental right of ‘human living’ followed by quality of life or dignity
of life co-relate with the financial gain. Unless financially a person has means or it
is not made available in pursuance of statutory mandate, a retired Army personnel
shall not be able to lead a human life coupled with dignity and quality. Being
fundamental in nature protected by Article 21 of the Constitution, non-inclusion of
disease in Annexure III to Appendix II shall not be fatal. A person may claim
disability pension even the name of the disease has not been mentioned and
included in Annexure III.
Interpretation :25.
Where a disease passes on to aggravated condition on different stages of
life or in different situation because of service condition then while denying service
benefit in the form of disability pension or otherwise it shall be obligatory for the
Army to establish that the person concerned was suffering with the aggravated
disease before entering into Army.
26.
It is well settled proposition that in case a provision or a construction
gives rise to anomalies or leads to a manifest contradiction of the apparent purpose
of the enactment or provision then such meaning should be given which serve the
purpose or beneficial to the society vide, AIR 1959 SC 422 – Viluswami Thevar
Vs. G. Raja Nainar; AIR 1955 SC 830 – Tirath Singh Vs. Bachittar Singh;
AIR 2002 SC 1334 – Padmasundara Rao Vs. State of T. N.; AIR 2004 SC 2236
– Modern School Vs. Union of India and 1979 SCC Vol. 2 Page 34 – Chief
Justice of Andhra Pradesh and Others Vs. L. V. Dixitulu and Others.
27.
In view of the above proposition while interpreting the disease and
treatment for Hydronephrosis in terms of Dictionary meaning (supra) and the
classification of disease as contained in Annexure III to Appendix II they must be
17
considered and constructed with positiveness keeping in view the aims and objects
and the element of welfareness.
28.
Classification of disease is not the final. With the pace of time multiple
researches are going on with new dimension for the treatment of diseases and their
effect. Classification is not mandatory but only directory. Accordingly, in case
there are other diseases which have been aggravated or attributable to Army service
then person concerned may claim disability pension. Burden shall be on the Army
to establish that the applicant joined the Army in aggravated condition of disease
and was not fit at entry level. In absence of such evidence disability pension may
not be denied.
Case Laws :29.
It is vehemently argued by the applicant’s counsel that as per various
pronouncement of Hon’ble Supreme Court (supra) the applicant is entitled for
disability pension. In case of Dharamvir Singh, Their Lordships in Hon’ble
Supreme Court after considering the earlier cases reported in 2007 Vol.12 SCC 675
– Union of India Vs. Keshar Singh; 2010 Vol.12 SCC 667 –Om Prakash Singh
Vs. Union of India & Ors. and 2009 Vol. 9 SCC 140 – Union of India Vs. A. V.
Damodaran held that while considering the disability pension primacy should be
given to the physical and mental condition of a member when entering the service.
It has been held that in the absence of note on record at the time of entry into the
service, there shall be presumption as to sound physical and mental condition. The
burden of proof shall be on the employer and not upon the claimant. The benefit of
doubt must be in favour of the employee.
30.
After considering different provisions, rules and regulations, observation
made by Hon’ble Supreme Court under Para.28 of the judgement in the case of
Dharamvir Singh Vs. Union of India is reproduced as under :-
“28………………….
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(i)
Disability pension to be granted to an individual who is
invalidated from service on account of a disability which is
attributable to or aggravated by military service in nonbottle casualty and is assessed at 20% or over. The question
whether a disability is attributable or aggravated by military
service to be determined under “Entitlement Rules for
Casualty Pensionary Awards, 1982” of Appendix-II
(Regulation 173).
(ii)
A member is to be presumed in sound physical and mental
condition upon entering service if there is no note or record
at the time of entrance. In the event of his subsequently
being discharged from service on medical grounds any
deterioration in his health is to presumed due to service
[Rule 5 r/w Rule 14(b)]
(iii)
Onus of proof is not on the claimant (employee), the
corollary is that onus of proof that the condition for nonentitlement is with the employer. A claimant has a right to
derive benefit of any reasonable doubt and is entitled for
pensionary benefit more liberally (Rule 9).
(iv)
If a disease is accepted to have been as having arisen in
service, it must also be established that the conditions of
military service determined or contributed to the onset of
the disease and that the conditions were due to the
circumstances of duty in military service. [Rule 14(c )]
(v)
If no note of any disability or disease was made at the time
of individual’s acceptance for military service, a disease
which has led to an individual’s discharge or death will be
deemed to have arisen in service. [14(b)]
(vi)
If medical opinion holds that the disease could not have
been detected on medical examination prior to the
acceptance for service and that disease will not be deemed
to have arisen during service, the Medical Board is required
to state the reasons. [14(b)] and
(vii)
It is mandatory for the Medical Board to follow the guidelines laid
down in Chapter II of the ‘Guide to Medical (Military Pension),
2002 – “Entitlement : General Principles”, including paragraph 7,8
and 9 as referred to above”.
In the present case nothing has been brought on record to indicate
that according to the report of the Medical Board the petitioner was
suffering from acute Hydronephrosis at the time of entry into the service but
it could not be detected. In such situation, there appears no room of doubt
that merely because of non-fatal congenital disease at the time of entry into
service the applicant may be deprived of disability pension.
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31.
Reliance placed by Mr. Bhattacharyya, ld. counsel for respondents
that the case of Ministry of Defence (supra) has not be over-ruled and
covered the present case and is applicable to deny the disability pension
seems to be misconceived argument. Once Their Lordships of Hon’ble
Supreme Court themselves had interpreted the judgment in the case of
Dharamvir Singh (supra) then it is not open for the Tribunal or any Court or
Authority to form different opinion than what has been expressed by
Hon’ble Supreme Court in the case of Dharamvir Singh Vs. Union of
India & Ors.
32.
Under such circumstances, it may be safely held that the petitioner’s
condition was aggravated because of Army service and in consequence
thereof he was suffering from acute Hydronephrosis resulting in surgical
treatment and retired from Army service with fragile health. Different
provisions and proposition of law and discussions made in the body of the
present order establish that the applicant is entitled for disability pension.
33.
Intake of officers in the Indian Army is suffering because those who
are serving in the Army are not treated with required dignity and laurels
and appropriate compensation for the service rendered by them for the
cause of the Nation. Appropriate compensation in the form of disability
pension is sine qua non to the service of Army and a little commission or
omission to pay disability pension or other pensionary benefits merely on
hyper technical ground shall be set back to the morals of persons who are
serving the country with utmost commitment and dedication at the cost of
their lives.
34.
In view of the above, O.A. (No.111/2013) is allowed. Respondents
are directed to reconsider the petitioner’s case for grant of
disability
pension with effect from 30.04.2011 (Date of discharge) and pass
appropriate speaking and reasoned order keeping in view the observation
20
made in the body of the present order, expeditiously say within a period of
four months from the date of communication of certified copy of the present
order and also communicate the order to the AFT, Kolkata. Cost made easy.
Original documents filed by the respondents be returned to them
under proper receipt.
Let a plain copy of the order, duly countersigned by the Tribunal
Officer, be furnished to both parties after observance of usual formalities.
(LT GEN GAUTAM MOORTHY)
Member (Administrative)
(JUSTICE DEVI PRASAD SINGH)
Member (Judicial)